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Southeastern Pain Specialists, P.C. v. Brown

Supreme Court of Georgia

March 5, 2018

SOUTHEASTERN PAIN SPECIALISTS, P.C.
v.
BROWN et al. DOHERTY
v.
BROWN et al. .SOUTHEASTERN PAIN AMBULATORY SURGERY CENTER, LLC
v.
BROWN et al.

          Peterson, Justice.

         These companion appeals raise questions about when a jury considering a medical malpractice case might also be instructed on issues of ordinary negligence. Sterling Brown Sr. sued the defendants individually and on behalf of his wife, Gwendolyn Lynette Brown, after she suffered catastrophic brain damage, allegedly from oxygen deprivation while undergoing a procedure to relieve back pain. Mrs. Brown died while this suit was pending, and the complaint was amended to add a wrongful death claim.[1] A trial in which the court instructed the jury on both ordinary negligence and medical malpractice resulted in an award of nearly $22 million. A divided Court of Appeals affirmed. We granted the defendants' petitions for certiorari to consider their argument that the Court of Appeals erred by concluding that the evidence supported a claim of ordinary negligence.

         The plaintiffs' case of medical malpractice was very strong. But a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice. The Court of Appeals erred in concluding that an ordinary negligence instruction was authorized by evidence that a doctor defendant responded inadequately to medical data provided by certain medical equipment during a medical procedure. Because the verdict was a general one such that we cannot determine that the jury did not rely on this erroneous theory of liability, we reverse with instructions that the Court of Appeals on remand order a full retrial as to the appellants.

         1. Background and procedural history

         a. Background

         The evidence presented at trial was as follows. Dr. Dennis Doherty, an anesthesiologist and pain management specialist, began treating Gwendolyn Lynette Brown for chronic back pain in 2008. Dr. Doherty performed two epidural steroid injection procedures ("ESIs")[2] on Mrs. Brown without incident. On September 16, 2008, Mrs. Brown arrived at the surgery center that Dr. Doherty had opened in 2006 ("the Surgery Center") for a third ESI. After her vital signs were assessed, Mrs. Brown was given a pain reliever and a sedative and placed face down on a surgical table. Some time later, at about 5:30 p.m., Dr. Doherty came into the operating room, administered propofol (another, different sedative), and started the procedure. Mrs. Brown's blood oxygen saturation level at this point was recorded at 100 percent.[3]

         Shortly after Dr. Doherty began the procedure, the pulse oximeter[4] that was used to monitor Mrs. Brown's blood oxygen saturation level sounded an alarm, indicating a drop in the level of oxygen in her blood. Michelle Perkins, a surgical technician involved in the procedure, at several points tried to turn up the oxygen, but each time Dr. Doherty told her to return to the imaging machine she had been operating. Ann Yearian, a nurse who was assisting, testified that at Dr. Doherty's direction she turned up the oxygen being administered to Mrs. Brown. Yearian began performing a "jaw thrust" - a procedure to open a patient's airway by repositioning her jaw. But Yearian reported difficulty, so Dr. Doherty paused his work of administering the epidural and assisted with the jaw thrust. Perkins asked Dr. Doherty if she should call nursing director Mary Hardwick, but he told her not to, saying Mrs. Brown was breathing and her airway was good. Perkins nonetheless tried to summon Hardwick with a surreptitious text message.

         When Hardwick arrived, Mrs. Brown was lying face down on the table with five-inch needles in her back, Dr. Doherty was at the head of the table holding her jaw to maintain an airway, and the pulse oximeter was sounding an alarm and registering zero.[5] The blood pressure monitor was recycling, inflating repeatedly without registering a reading. Hardwick grabbed a stretcher so that Mrs. Brown could be turned on her back to be resuscitated, but Dr. Doherty would not allow it. Instead, he told Hardwick that the pulse oximeter was malfunctioning and did not show Mrs. Brown's true oxygen saturation, and that Mrs. Brown had a pulse, was breathing, and was fine. Perkins retrieved a second pulse oximeter at Hardwick's directive and Hardwick placed it on Mrs. Brown's toe, but it also registered a reading of zero oxygen saturation. Dr. Doherty continued to insist that everything was fine and resumed the procedure as various staffers attempted to physically maintain Mrs. Brown's airway. The procedure was completed at 5:48 p.m, 18 minutes after it began.

         After Dr. Doherty completed the procedure and the needles were removed, Mrs. Brown was turned onto her back and placed on a stretcher. A pulse oximeter began registering a blood oxygen level in the low 50-percent range. Mrs. Brown was given drugs to reverse the effects of some of the drugs she had been given previously. Dr. Doherty began manually ventilating Mrs. Brown with a bag valve mask. Within a couple of minutes, her oxygen levels rose to the 90s; she was able to maintain that level with oxygen being administered. Hardwick asked if she could call 911, but Dr. Doherty told her not to, saying that Mrs. Brown was just heavily sedated.

         At about 7:30 p.m., when Mrs. Brown had not fully awoken or responded normally to voice or painful stimuli, she was taken to a hospital by emergency medical personnel. Dr. Doherty told Mrs. Brown's daughter-in-law, the emergency medical technicians who responded to the practice's 911 call, and the physician who admitted Mrs. Brown to the hospital that the ESI had gone fine and Mrs. Brown simply was having complications coming out of the anesthesia slowly; he gave no indication that Mrs. Brown might have experienced respiratory complications during the procedure. Mrs. Brown arrived at the hospital in what the admitting physician described as "acute respiratory failure." Mrs. Brown remained profoundly cognitively impaired and a quadriplegic for six years until her death in September 2014. The plaintiffs presented evidence that Mrs. Brown had suffered a catastrophic brain injury caused by oxygen deprivation during the ESI and that she died from complications of that injury.

         b. Trial proceedings

         The plaintiffs sued Dr. Doherty, Hardwick, Southeastern Pain Ambulatory Surgery Center, LLC ("the LLC"), and Southeastern Pain Specialists, P.C. ("the P.C.").[6] The complaint and subsequent amendment were entitled "Complaint for Medical Malpractice, " but proposed pre-trial orders filed by the parties framed the plaintiffs' allegations as including both medical malpractice and ordinary negligence. The plaintiffs at various points raised several possible theories of liability, including that Dr. Doherty improperly administered propofol to Mrs. Brown - an obese patient with sleep apnea - without positioning another anesthesiologist or a nurse anesthetist at the head of the table to monitor her airway; that Dr. Doherty failed to respond appropriately when Mrs. Brown experienced respiratory distress; and that Dr. Doherty failed to contact emergency medical services promptly. Among other things, the plaintiffs also alleged that Hardwick knew that Doherty was impaired by a condition that interfered with his ability to practice medicine and that Hardwick failed to warn patients about his impairment or otherwise intervene to protect them from harm.[7]

         At the January 2015 trial, the court charged the jury on both ordinary negligence and medical malpractice. Arguing for the ordinary negligence instruction, the plaintiffs' counsel cited the "obvious[]" obligation "to save the patient if they're not breathing" and misrepresentations that Dr. Doherty made to other healthcare providers. The defendants objected to the charge on ordinary negligence, arguing among other things that it was not warranted by the evidence.

         Anticipating those instructions in closing, the plaintiffs argued to the jury:

Now, look, this case is a case of negligence, right? Neglect. And negligence the judge will tell you . . . is the failure to use care that is ordinarily used by ordinarily careful persons. You just have to use care under the circumstances presented, not under the circumstances of the first two procedures, but the circumstances presented when ...

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